ACLU warns surveillance must not violate person's First Amendment rights

Although much smaller in scale, El Paso law-enforcement officials have been swept into the government spying controversy over local surveillance of social media sites.

Sheriff Richard Wiles and his department attracted plenty of criticism recently after he announced the department was trying to seek a grant to purchase software that would monitor social media to track possible criminal activity.

But Wiles said the criticism has been blown out proportion after a few Facebook users accused him of spying. He said the software only searches for information that is openly posted on sites such as Facebook, Twitter and Backpage.

Critics say it smacks of "Big Brother" looking in and it may be dangerous for law enforcement to monitor people, even if information is freely posted on open sites, because there are First Amendment protections.

The software, named Snaptrends, gathers information from social media profiles by scanning for keyswords or phrases. The information is then compiled for investigators who are looking into possible crime trends in certain areas. The software only gathers data from profiles that can be seen by the general public.

For example, online ads for escort services commonly refer to "roses" instead of dollars. The software would scan for all ads with the word "roses," and investigators can sort through the search results to determine if illegal activity may be taking place.

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"In law enforcement, we're always looking for information about potential crimes that might occur and that have occurred," Wiles said. "When I was in the Police Department back in 1982, we had an intelligence section where all people did was read the newspaper, which is open source information."

Wiles said since the advent of the Internet and the increase in social media, law enforcement officials across the country regularly gather information in order to predict potential problems, such as riots, demonstrations, prostitution and drug sales.

"Since the Internet has started, we do continue to gather open source information," Wile said. "Like on Facebook, we've come across crazy stuff."

Wiles said the software will also help him keep track of public sentiment regarding the Sheriff's Office. If, for example, someone takes to social media to complain about their experience with a deputy, the Sheriff's Office can then take steps to remedy the problem.

Other police departments in Texas, including El Paso, also use the Snaptrends software, which can be publicly purchased, for crime investigation and prevention by culling information available on social media.

"The software allows investigators to gain access to information that has been made public by users of various social media outlets," said El Paso police spokesman Detective Mike Baranyay. "The software does not allow investigators to access information that has not been voluntarily uploaded to a social media outlet. It is also important to note that this software is not unique to law enforcement and as such is utilized by corporations who are developing marketing strategies and want more information on current trends in certain geographical areas."

Wiles said he was approached by sheriff's crime analyst Deputy Jesse Tovar about purchasing the $7,500 software by applying for a grant. Wiles also said the El Paso Police Department uses Snaptrends, which they purchased with confiscated drug money.

"We're not focusing on anybody in particular," Tovar said. "It's a public safety resource tool, not spying."

Tovar said investigators regularly monitor open social media profiles for crime trends, and have found that several users at times post photos of drug use and tag other friends and their location in the photos.

Investigators also monitor social media profiles in search of witnesses to crimes. For example, investigators have found when a major incident occurs, users often upload photos of the scene and describe what they saw.

Matt Simpson, policy strategist for the American Civil Liberties Union of Texas, said law enforcement officials should keep in mind a person's First Amendment rights before pursuing any criminal charges, and should conduct investigations based on information provided by the software in a "narrow and focused way."

"What becomes concerning is if they're monitoring First Amendment activity, any effort like this has to be very careful and clear that First Amendment activity is not the basis for any criminal investigation," Simpson said.

Simpson also questioned why the Sheriff's Office is purchasing software available at the El Paso Fusion Center, which consists of several local, state and federal law enforcement agencies.

"One of the baseline questions is why this is necessary. Just because you can do it, and it sounds like you're keeping in step with the times, doesn't make it good practice."

Wiles said he decided to try and purchase the software because the center is not always open, and deputies would be better able to use the software if the sheriff's office had its own copy.

Simpson said he is also concerned law enforcement officials will take juvenile boasts or statements as a credible threat.

"It's easy to take things out of context online," Simpson said. "Part of the problem with these sort of surveillance efforts is if folks aren't properly trained and using poor judgement. This is not to be taken lightly."

Wiles said some have compared the Sheriff's Office to the National Security Agency, which has come under fire for monitoring phone calls and emails of unsuspecting Americans and gathering data about their activities.

"I respect people's privacy and rights under the constitution," Wiles said. "I don't have a problem with people's freedom of speech and assembly, but if they're going to hurt somebody, then that's a problem. Comparing me to NSA because of a $7,500 piece of software that comes nowhere near what the NSA does is just taking something and blowing it out of proportion."

Local criminal defense attorney Justin Underwood said he agrees with Wiles, and warns social media users to be more careful of the information they post online and particularly selective of who they choose as "friends."

"Any time people post anything on Facebook or Twitter, it's immediately available for entire world to see. People don't realize Big Brother is watching, and it doesn't require a warrant because it's in the public domain," Underwood said. "If you post a picture of you smoking a blunt with your friends, (law enforcement officials) can't charge you, but it's setting off red flags that you're engaged in that kind of behavior, and they'll be more likely to notice when you don't use your turn signal, and they'll start searching your car. That's why they want to use it."

Underwood said police and deputies aren't the only ones searching through social media profiles, often without the use of special software. Underwood said he has used information from Facebook to impeach witnesses in court. He advises users to lock their profiles, screen friend requests carefully and refrain from using GPS locators on cellphones and other devises to automatically make their location viewable by others.

"There are privacy settings you can set on Facebook, and make sure you screen your friends," Underwood said. "If you're just accepting them blindly, you may have just accepted a detective sitting a desk somewhere pretending to be a good-looking lady. It's scary to think law enforcement can pretty much know where you're at, what you're doing, who you're with and your route home."